The Investigation of the Investigators: Schneiderman Added to Discovery Order on #ExxonKnew

A federal judge has dealt yet another major blow to the already pretty devastated #ExxonKnew campaign this week, ruling that a standing discovery order – which was issued to determine if Massachusetts Attorney General Maura Healey was engaging in a “bad faith” pursuit of ExxonMobil – can be amended to include New York Attorney General Eric Schneiderman, who has been spearheading the entire #ExxonKnew effort.

In other words, the federal judge has officially affirmed that Schneiderman, like Healey, could have been using “bias and prejudgment” to launch his investigation as well. Now the primary “investigators” will be investigated themselves, and the curtain will be raised on their level of collusion and coordination with environmental activists, who have been working with them for more than a year to pursue this overtly political campaign.

Bad Faith

This news comes after Schneiderman has repeatedly refused to turn over documents related to his investigation. The Energy and Environment Legal Institute (E&E Legal) has been forced to sue to obtain them, and he has fought a subpoena by the House Science Committee tooth and nail.

But it’s not surprising that he doesn’t want anyone to see his documents, considering that every time the curtain has been drawn further back, it becomes more and more apparent that politics is the motive here.

Emails obtained through freedom of information requests reveal that environmental activist lawyer Matt Pawa and Peter Frumhoff of the Union of Concerned Scientists (UCS) briefed the AGs behind closed doors ahead of their March 29th press conference with Al Gore to announce their investigations. But, when Pawa wrote to the New York Attorney General’s office to inform them he’d been asked by a Wall Street Journal reporter about his involvement, Lem Srolovic of Schneiderman’s office told him, “My ask is if you speak to the reporter, to not confirm that you attended or otherwise discuss the event.”

As part of their effort to keep their correspondence secret, the AGs also signed on to a Common Interest Agreement, and the document shows that the agreement was not related to a legitimate law-enforcement objective – instead it was focused on “limit[ing] climate change” and “ensuring the dissemination of accurate information about climate change.”

What’s more is that instead of maintaining the confidentiality that is expected in a case such as this to avoid bias or prejudgment, Schneiderman went on a media blitz to promote his investigation. Mere hours after Exxon received Schneiderman’s subpoena, The New York Times was reporting on it, noting that it focused on “the company’s own long running scientific research” on climate change. Only a week later, Schneiderman appeared on PBS NewsHour to proclaim that his investigation of the company centered on his concerns that Exxon had “shifted [its] point of view” on climate change over the years. Less than a month later, Schneiderman attended a Politico event in New York where he was openly prejudicial in his rhetoric about his investigation into ExxonMobil.

If that’s not enough, Schneiderman and his Green 20 coalition tried to make their investigations an even bigger story by announcing their grand, partisan plans at their March 29thpress conference with Al Gore. At the event, Schneiderman and Healey made it very clear that they had already determined Exxon’s guilt before the investigation ever began.

Over the past few months, Schneiderman has spectacularly changed his purpose for investigating Exxon at least three times: first he said it was about what “Exxon knew” about climate change back in the 1970s and 1980s. When that didn’t really work out he decided it was about what Exxon “predicts” – but when that argument turned out to be a flop, he decided it was actually about what Exxon “failed to predict” regarding future regulations for climate change.

But as it turns out, SEC regulations actually prohibit companies from considering the impact of future regulations when estimating their reserves, so what Schneiderman and Healey are trying to impose creates a direct conflict with federal law. But the important question is: If his motivation were pure how does he justify changing the reason for his investigation three times?

The tables have officially turned and as Columbia Law Professor Philip Hamburger succinctly put it,

“If attorneys general are to have the subpoena power, they need to be held accountable. Hence the investigation of the investigators.”

[…] investigation into ExxonMobil, has been fighting accusations of bias after a federal judge issued a discovery order to her and New York Attorney General Eric Schneiderman to determine if they were acting in “bad […]